Steven K. Raquet
Jeffrey A. Modisett
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Deputy Attorney General
Steven K. Raquet
Jeffrey A. Modisett
sentenced Pendergrass to sixty years for murder and one year for resisting law enforcement
to be served consecutively. In this direct appeal, Pendergrass raises two issues for our
review: (1) did the trial court err by not excusing a juror and (2) did the trial court's response
to the jury's request for additional guidance violate his constitutional right to be present.
able to continue today, and counsel raised no objection. Third, Pendergrass notes that when
the jurors were brought into the courtroom to review two exhibits after deliberations had
begun, the juror refused to look at both exhibits and kept her head down the entire time.
Brief of Appellant at 10. At the time, defense counsel stated I just want to make that
observation for the record." He did not ask that the juror be questioned or that she be
replaced with an alternate.
By failing to request the discharge of the juror or object to her continued service, Pendergrass has waived any argument on this issue.See footnote 2 Cooper v. State, 259 Ind. 107, 111-12, 284 N.E.2d 799, 801-02 (1972) (failure to object at trial to discharge of juror and substitution of alternate juror results in waiver).
communications between judge and deliberating jury regarding jury instructions. Brief of
Appellant at 11. Although he does not cite a specific constitutional provision, we understand
Pendergrass' argument to allege a violation of Article I, Section 13 of the Indiana
See, e.g., Foster v. State, 267 Ind. 79, 82-83, 367 N.E.2d 1088, 1089 (1977).
A. The first two notes
The trial court sent a tape recording of its reading of the final instructions to the jury room at the beginning of deliberations.See footnote 4 After retiring for deliberations, the jury sent out
two notes that requested guidance and additional clarification from the Court on whether
the Jury needed to make specific findings as to the degree of offenses pertaining to Neglect
of a Dependent and Count I[.]See footnote
The trial court responded to both notes that the Jury must
refer to the Instructions with no further indications or specifications being given by the
Court. The trial court did not advise counsel or the defendant of these notes until sometime
1. The constitutional protection under case law
We have repeatedly noted the proper procedure for trial courts to follow when a deliberating jury makes a request for additional guidance during its deliberations. The trial court should
notify the parties so they may be present in court and informed of the court's proposed response to the jury before the judge ever communicates with the jury. When this procedure is not followed, it is an ex parte communication and such communications between the judge and the jury without informing the defendant are forbidden. However, although an ex parte communication creates a presumption of error, such presumption is rebuttable and does not constitute per se grounds for reversal. When a trial judge responds to the jury's request by denying it, any inference of prejudice is rebutted and any error deemed harmless.
Bouye v. State, 699 N.E.2d 620, 628 (Ind. 1998) (citations omitted). In this case, the trial
court erred by communicating with the jury prior to notifying the parties. However, the trial
court's response merely to refer to the instructions was in substance a denial of the request
for additional clarification and therefore harmless error. Allen v. State, 686 N.E.2d 760, 782
(Ind. 1997) (trial court's ex parte communication to [p]lease reread all the instructions held
to be harmless error), petition for cert. filed (U.S. Aug. 28, 1998) (No. 98-5855); see also
Denton v. State, 455 N.E.2d 905, 909 (Ind. 1983) (inference of prejudice rebutted when trial
court sent all written final instructions to the jury room, without notification to the parties
or counsel, in response to a jury request for a written definition of rape). As we noted in
Bouye, the prohibition against ex parte communications is . . . designed to prevent the jury
from being improperly influenced by the judge. 699 N.E.2d at 629. The trial court's
response in this case merely instructed the jurors to review the instructions already in their
possession. The judge did not supplement those instructions or direct the jury's attention to
any particular instruction. This response in no manner could have improperly influenced the
2. The statutory protection
Pendergrass also contends that this ex parte communication was in violation of Indiana Code § 34-1-21-6 (1993) (now codified with minor editorial changes at Indiana Code § 34-36-1-6 (1998)). This statute, in addition to being triggered by an explicit manifestation of disagreement among jurors about testimony, see Bouye, 699 N.E.2d at 627-28, also applies when a deliberating jury desire[s] to be informed as to any point of law arising in the case[.] Ind. Code § 34-1-21-6 (1993). It provides that in this event the jurors may
request the officer to conduct them into court, where the information required shall be given
in the presence of, or after notice to, the parties or their attorneys. Id. The statute does not
require the presence of or notice to the parties or their attorneys whenever the trial court
responds to a jury request. Rather, notice or presence is required when information is
given. Because nothing was given to the deliberating jury in this case, the statute was not
violated. Cf. Cape v. State, 272 Ind. 609, 611, 400 N.E.2d 161, 163 (1980) (replaying trial
testimony to a deliberating jury in the absence of, and without notice to, the defendant or his
counsel held to be reversible error).
B. A subsequent note
As a final point, Pendergrass argues that the trial court committed reversible error in responding to an additional note from the jury that read, We need to know (1) knowingly and intentionally; (2) knowingly or intentionally as this question comes from a question between the judge saying knowing or intentionally but then saying 'taking into account each essential element in the charge.'" In contrast to the two notes discussed above, the trial court informed counsel and the defendant of this note prior to responding. The trial court indicated its proposed response was to instruct the jurors to review and refer to the instructions they had already been given. Defense counsel indicated that he concurred with the proposed response. Having agreed to the propriety of this response at trial, Pendergrass cannot now assert error on appeal. Any claim of error is waived. Rhinehardt v. State, 477 N.E.2d 89, 94 (Ind. 1985).
SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.
to send the instructions to the jury room at the beginning of deliberations was made known to counsel prior to the commencement of deliberations. One of the court's proposed final instructions stated: As the Court is sending a recording of the court's instructions with you to the jury room, you may be able to answer your questions by reviewing the court's instructions. The proposed instructions were made available to counsel the week before trial. When asked at trial if he had any objections to the instructions, defense counsel stated that he did not.
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